Divorce and separation are not the same. Divorce is the legal process by which your marriage is terminated and, once this happens, you are free to remarry. Divorce is granted by a court – the Superior Court, in Ontario, makes an order terminating your marriage. Separation, on the other hand, is simply the end of your relationship with your partner.
Spouses can be separated for years, yet never divorced. They can continue to live under the same roof, in the same home, or move to difference residences. They may agree on issues like child support, spousal support, parenting arrangements, and property division. Separated spouses may sign a Separation Agreement that will solidify these arrangements and still, they can remain legally married.
There are some legal consequences of staying married, even after having signed a Separation Agreement, that parties should be aware of if they don’t intend to pursue a divorce right away.
However, this piece is about why you should pursue a divorce sooner rather than later after signing your Separation Agreement. There are many reasons to do this, and chief among them is that if you wait too long to get divorced, especially when you have children, you may be adding to procedural complexity and expense.
In cases where child support is still being paid, the court has a duty to satisfy itself that the children are, in fact, receiving an appropriate amount of child support. If the court is concerned that an appropriate amount of child support is not being paid, it can deny granting a divorce.
People who have signed Separation Agreements outlining child support, and who have not followed the Agreement or updated the amount of child support that a child should receive, may find themselves needing to update the support before having their divorce granted. This means contacting their estranged spouse and rehashing the issue of child support. And what if they’ve moved away? What if they cannot be found? What if one spouse is reluctant to re-engage with the other?
If you get your divorce shortly after initial child support arrangements are made and are accurate, you may avoid a court refusing to grant you a divorce in the future.
Another, lesser, procedural complication sometimes arises when people simply forget about the divorce. Once the Separation Agreement is done, support is in place, property is divided, and people go on with their lives, the notion of divorce gets pushed into the far corners of their mind because it’s not something they need dealt with that affects them immediately. It will resurface, however, when they are in a new relationship and want to remarry, which is illegal if they are still married to their ex. Now there is urgency, and they may no longer remember if they ever completed the divorced or may conflate it with separation, believing that the divorce was a part of the Separation Agreement, when it is not.
If an urgent divorce is needed, and people don’t remember if the divorce proceeding was commenced or completed, they will need to figure out what courthouse or jurisdiction the divorce would have been filed in and inquire there. This may be cumbersome if either party has moved and add further delay to the process. They may also need to contact their ex or their ex’s lawyer to ask if they ever commenced an application for the divorce so as not to duplicate proceedings.
Proceeding with the divorce promptly after the Separation Agreement is signed, and making sure you get that divorce certificate, makes the divorce a smoother, and less stressful process. Not only is it more cost effective and streamlined in process, but divorce can also give emotional (and legal) closure and real finality to what is, for many, a messy and stressful chapter of their lives.
Dorothy Kosinska is a co-owner of Kosinska O’Shea Law and practices exclusively in the area of Family Law.